The requirement laid down in Articles 60 and 77-1 of the Code of Criminal Procedure that « qualified persons » assisting judicial police officers (OPJs) during a search take an oath is an essential procedural requirement « enacted to ensure the reliability of the gathering and presentation of evidence ». Its breach may therefore be invoked by « any party with an interest in doing so ».
Consistent with the trend towards more detailed reasoning in Court of Cassation judgments since 2019, reaffirmed in the Drafting Guide – Enhanced Reasoning published by the Court of Cassation in September 2023, the decision under review clarifies the concept of standing where a procedural requirement governing the conduct of a search under the Code of Criminal Procedure has been breached.
In this case, the Court was asked to clarify the rules applicable to a breach of the requirement that qualified persons who are not registered on expert lists take an oath when assisting OPJs in carrying out a search.
It should be recalled that, although Articles 60 and 77-1 of the Code of Criminal Procedure do not expressly prescribe nullity for failure to comply with this requirement, the Criminal Chamber has long accepted that its breach may result in the search being declared void (see, for example, Criminal Chamber, 22 February 1996, No. 95-85.861 B). It thereby recognises that this requirement constitutes an « essential formality » indispensable to « the validity of the prosecution » (C. Guéry and B. Lavielle, Law and Practice of Hearings before Criminal and Police Courts, 4th ed., Dalloz Action, 2024-2025, Nos. 611.21 et seq.).
As with any nullity arising from breach of an essential procedural requirement, it falls to the Court to determine the conditions governing the admissibility of an application seeking a finding of nullity.
The operation in question was conducted by investigators on the premises of a legal entity, with the assistance of two inspectors from the Directorate-General for Competition, Consumer Affairs and Fraud Prevention (DGCCRF).
Those two persons acted outside the scope of the powers conferred by their official positions, as « qualified persons » under Article 60 of the Code of Criminal Procedure. Although they were not registered on expert lists, they had not previously taken a written oath « to assist the administration of justice on their honour and in good conscience ».
The person under formal investigation, in a judicial investigation concerning, among other offences, fraud, undeclared work, misleading commercial practices, exploitation of vulnerability and money laundering, sought the annulment of the search operation and several other procedural documents.
In rejecting the plea of nullity based on the failure to take an oath, the Investigating Chamber merely found it inadmissible, stating that « even assuming the alleged irregularities to be established, only [H] [W], in his capacity as legal representative of company [1], had standing to invoke them ».
In doing so, the Investigating Chamber denied the person under formal investigation the right to challenge the lawfulness of the search conducted on business premises over which he held no rights, even though evidence obtained during that search might be used against him.
The applicant lodged an appeal on points of law, which the President of the Criminal Chamber immediately admitted for examination, thereby recognising the need to refer it to the Chamber in « the interests of public policy or the proper administration of justice », pursuant to Article 570 of the Code of Criminal Procedure.
Asked to clarify its interpretation of Articles 60 and 77-1 of the Code of Criminal Procedure, the Criminal Chamber recalled that « where judicial police officers, during a preliminary investigation, engage qualified persons to assist them during searches and seizures, those persons must, if they are not registered on an expert list, take a written oath to assist the administration of justice on their honour and in good conscience ». It further specified the purpose of that requirement, « enacted to ensure the reliability of the gathering and presentation of evidence ».
Accordingly, in concluding that the person under formal investigation « who cannot establish any right over the company’s premises, has not shown how these irregularities infringed his own interests and has no standing to invoke them », the Investigating Chamber had failed to comply with the cited provisions.
The oath requirement, « enacted to ensure the reliability of the gathering and presentation of evidence », is indeed a requirement whose breach may be invoked by « any party with an interest in doing so ». Accordingly, the absence of rights over the searched premises does not, in itself, render inadmissible an application for annulment made by a person under formal investigation in the same proceedings.
This decision provides an opportunity to discuss the Court of Cassation’s assessment of the concepts of an interest in bringing proceedings, standing and prejudice in relation to challenges to compliance with the procedural requirements governing searches. It also provides an opportunity first to recall the rules governing the presence of « qualified persons » during a search.
Rules governing the presence of « qualified persons » during a search
The Code of Criminal Procedure regulates the presence during a search both of those who carry it out and of those whose presence guarantees its procedural regularity. As the Criminal Chamber has repeatedly recalled, these two capacities cannot be combined:
- the first category comprises the OPJ personally, « Officials and agents of public administrations and services upon whom special legislation confers certain judicial police powers », referred to in Article 28 of the Code of Criminal Procedure, and the « qualified persons » referred to in Article 60 of that Code, who are the subject of the present decision.
In a welcome clarification, the Criminal Chamber has explained that police officers assisting the OPJ (Criminal Chamber, 4 November 2010, No. 10-84.389 B, AJ pénal 2011. 38, commentary by H. Vlamynck ), whose duties consist in supporting the OPJ in exercising judicial powers, must naturally be regarded as subject to the OPJ’s « administrative authority » within the meaning of Article 57 of the Code of Criminal Procedure (for example, municipal police officers acting as auxiliary judicial police officers in the exercise of their duties are regarded as subject to the OPJ’s administrative authority). They therefore cannot act as witnesses guaranteeing the procedural regularity of the operation (Criminal Chamber, 13 September 2022, No. 22-80.515 B, cited above).
- the second category comprises the persons designated in Article 57, cited above (in an investigation into an offence discovered in the act; Article 76 applies, by reference, in a preliminary investigation, and Article 96 applies, by reference, in a judicial investigation), namely the person holding a right over the searched premises, that person’s designated representative in the event of absence, or, failing that, two witnesses called upon for that purpose by the OPJ, « other than persons subject to the OPJ’s administrative authority » (see above).
Through their presence and their signature on the official record describing the conduct of the search, these persons guarantee its « adversarial nature » and authenticate the « actual presence on the premises of the objects discovered and seized » (Criminal Chamber, 13 September 2022, No. 22-80.515 B, D. 2022. 1598; ibid. 2023. 1488, commentary by J.-B. Perrier; AJ pénal 2022. 486, commentary by R. Mesa; RSC 2023. 150, commentary by P.-J. Delage ).
Under Article 56 of the Code of Criminal Procedure, these two categories of persons alone may inspect « papers, documents or computer data before seizing them ». The question of third parties present during a search, who may constitute a distinct third category, will not be addressed here (Relevant to this issue is the presence of journalists during a search or, more broadly, during « investigative acts », which the Criminal Chamber prohibits as a breach of the confidentiality of the proceedings (Criminal Chamber, 10 January 2017, No. 16-84.740 B, D. 2017. 113; ibid. 1676, commentary by J. Pradel; AJ pénal 2017. 140, commentary by J.-B. Thierry; Légipresse 2017. 72 and accompanying commentary; ibid. 81, study by E. Dreyer; RSC 2017. 334, commentary by F. Cordier; 9 January 2019, No. 17-84.026 B, D. 2019. 74; AJ pénal 2019. 144, case note by A. Dejean de la Bâtie; Légipresse 2019. 90, commentary by E. Derieux; 9 March 2021, No. 20-83.304 B, D. 2021. 528; ibid. 2022. 574, commentary by H. Aubry, E. Poillot and N. SauphanorBrouillaud; AJ pénal 2021. 325, commentary by J.-B. Thierry; Légipresse 2021. 135 and accompanying commentary; ibid. 222, study by E. Dreyer; RSC 2021. 441, commentary by J.-P. Valat; ibid. 2022. 65, commentary by C. Ambroise-Castérot ).
The present case does, however, call for a review of the scope of the concept of « qualified persons » within the meaning of Article 60 of the Code of Criminal Procedure, namely persons who assist in carrying out the search for the purposes of « findings » or « technical or scientific examinations ».
While the position is relatively clear regarding experts and technicians outside State services – for example, a pharmacist not working in the service called upon to examine a sample must be treated as a « qualified person » subject to the oath requirement (Criminal Chamber, 31 May 2007, No. 07-80.928 B, D. 2007. 2033; AJ pénal 2007. 385, commentary by G. Roussel; RSC 2008. 651, commentary by J. Buisson ), as must a forensic physician preparing an autopsy report (Criminal Chamber, 23 October 2013, No. 13-84.226) – this decision recalls that the issue arises more acutely in relation to officials belonging to public administrations that themselves possess investigative powers.
Although it is established that officials of the tax administration (Criminal Chamber, 22 February 1996, No. 95-85.861 B; 6 February 1997, No. 96-84.018 B, D. 1997. 99; Rev. sociétés 1997. 380, case note by B. Bouloc ), URSSAF (Criminal Chamber, 27 March 2019, No. 18-83.493) or the DGCCRF (the present case) may also be treated as « qualified persons » subject to the oath requirement, a distinction must be drawn where they possess judicial police powers and act, pursuant to a judicial letter of request or a magistrate’s requisition, specifically within the scope of their duties.
By contrast with the present case, one example is that of investigators from the National Directorate for Fraud Prevention Investigations acting pursuant to a judicial letter of request, within the scope of their judicial powers, alongside judicial police officers (Criminal Chamber, 6 May 2002, No. 02-81.130 B, RSC 2002. 906, commentary by J. Buisson; ibid. 909, commentary by J. Buisson; ibid. 2003. 393, commentary by J. Buisson ). In that situation, the Court did not require an oath to be taken.
The same approach was adopted regarding customs officers conducting a judicial investigation at the public prosecutor’s request under Article 28-1 of the Code of Criminal Procedure and seeking the assistance of a service possessing the appropriate technical resources to perform examinations for the detection and measurement of narcotic substances, even though the officers were acting outside their territorial jurisdiction (Criminal Chamber, 26 November 2008, No. 08- 86.060).
The procedural situation addressed in the decision under review is not comparable, however, since it is established in this case that the OPJs engaged two DGCCRF inspectors as « qualified persons ». The appeal focused on an issue preliminary to consideration of the merits of the application for annulment: the standing of an applicant holding no rights over the searched premises.
Interest in bringing proceedings, standing and prejudice in the event of an unlawful search
Since the reform of the drafting of Court of Cassation judgments initiated in 2019, a number of decisions containing enhanced reasoning have clarified and strengthened various criminal procedural requirements governing the lawfulness of procedural acts (see, in particular, S. Trifkovic, The Criminal Chamber’s Increasing Requirements in Criminal Procedure, Lexbase, La lettre juridique, 2 February 2023).
The Criminal Chamber has not avoided the question of the scope of applications to annul procedural acts, which rests on the overlapping concepts of an interest in bringing proceedings, standing and prejudice (on the overlap between these concepts and their development in case law up to the judgments of 7 September 2021, see, in particular, G. Candela’s comprehensive article, Admissibility of Applications for Annulment: Development of Case Law up to the Change of Approach of 7 September 2021, AJ pénal 2021. 527).
The decision under review forms part of that work and follows the case law outlined in two judgments of 7 September 2021 concerning standing to challenge a search operation (Criminal Chamber, 7 September 2021, No. 21-80.642 B and No. 20-87.191 B, D. 2021. 1630; AJ pénal 2021. 484, commentary by M. Recotillet; ibid. 527, case note by G. Candela; RSC 2022. 94, commentary by P.-J. Delage; ibid. 439, commentary by E. Rubi-Cavagna ).
Before those decisions, it was established that only persons holding a right over the searched premises could challenge the lawfulness of the search.
The right in question has been defined by reference to a place where a person « whether or not they live there, (…) is entitled to regard themselves as being at home ». It amounts, at a minimum, to a right to occupy the premises, irrespective of the legal basis of that occupation or the use to which the premises are put (see, for example, Criminal Chamber, 24 June 1987, No. 87-82.333 [concerning an office], or 20 November 1984, No. 84-97.829 [concerning a converted boat], or 21 July 1982, No. 82-91.034 [application of the provisions governing searches to a body search]).
This approach followed the broader, longstanding principle that « a person invoking the omission or irregularity of a procedural requirement protecting the parties’ rights has standing to do so only if that irregularity concerns them » (see, for example, Criminal Chamber, 14 December 1999, No. 99-82.369, a principle already reversed in 2006, D. 2000. 153, and accompanying commentary ). On that occasion, influenced by the Strasbourg Court’s case law (Matheron v. France, ECtHR, 29 March 2005, No. 57752/00, D. 2005. 1755 , case note by J. Pradel; RSC 2006. 662, article by F. Massias; ibid. 2007. 333, study by R. Filniez ) and relying on Article 6, § 1, of the European Convention on Human Rights and Articles 171 and 802 of the Code of Criminal Procedure, the Criminal Chamber had held that « an applicant seeking annulment may invoke the irregularity of a procedural act concerning a third party if that unlawfully performed act infringed the applicant’s interests » (Criminal Chamber, 6 September 2006, No. 06-84.869 B, concerning a challenge to the validity of an identity check on a third party that led to the applicant being placed under formal investigation, D. 2006. 2483; ibid. 2007. 973, commentary by J. Pradel; AJ pénal 2006. 509, commentary by C. Girault ). The applicant’s interest in bringing proceedings then took precedence over standing.
This trend was nevertheless reversed again by two judgments of 14 February 2012 (Criminal Chamber, 14 February 2012, No. 11- 87.757 B and 11-84.694 B, D. 2012. 612; RSC 2012. 394, commentary by D. Boccon-Gibod ), delivered in the context of the reform of police custody, which restored the primacy of standing by holding that « failure to comply with the essential procedural requirements governing police custody may be invoked in support of an application to annul a procedural act or document only by the party whom it concerns ».
A detailed judgment delivered in February 2018 summarised the principle as applied to searches as follows: « failure to comply with the essential procedural requirements governing searches and seizures may be invoked in support of an application to annul procedural acts or documents only by a party holding a right over the premises where they took place » (Criminal Chamber, 6 February 2018, No. 17-84.380 B, D. 2018. 352; AJ pénal 2018. 204, commentary by Y. Capdepon ).
Courts were again required, when examining the applicant’s standing, to verify that the applicant held an actual right over the searched premises, in order to reconcile protection of private life and the home with the conduct of a search capable of contributing to the ascertainment of the truth.
A notable judgment of 18 June 2019 nevertheless initiated a development in the concept of standing concerning the public prosecutor’s authorisation required under Article 77-1 of the Code of Criminal Procedure for OPJs to issue requisitions to « qualified persons », by reference to Article 60 of that Code. The judgment stated that all the procedural requirements laid down in that provision « are enacted to ensure the reliability of the gathering and presentation of evidence » and that, consequently, the absence of that authorisation « may be invoked by any party with an interest in doing so » (Criminal Chamber, 18 June 2019, No. 19-80.105, D. 2019. 1339; RSC 2019. 653, commentary by P.-J. Delage ).
The judgments of 7 September 2021, cited above, which explain the concepts of interest, standing and prejudice in applications for annulment, subsequently changed the position somewhat by clearly defining these three concepts. Except in cases of nullity on public policy grounds, which « concern the proper administration of justice », courts must therefore apply the following « general principles », likewise developed by reference to Articles 171 and 802 of the Code of Criminal Procedure:
- « the applicant has an interest in bringing proceedings if they have an interest in obtaining annulment of the act »;
- « the applicant has standing to seek annulment (…) if the essential procedural requirement, or the requirement prescribed on pain of nullity, whose breach is alleged, is intended to protect a right or interest personal to the applicant »;
- « prejudice is established where the irregularity itself has caused harm to the applicant, which cannot arise solely from the applicant being implicated by the challenged act ».
The reasoning in the first Criminal Chamber judgment of 7 September 2021 (No. 21-80.642 B, cited above) expressly supplements the ruling in the judgment of 6 February 2018, cited above, by explaining that « some [of the essential procedural requirements governing searches and seizures] are intended to authenticate the actual presence on the premises of the objects discovered and seized during the search ».
Accordingly, also relying on Article 6 of the European Convention on Human Rights as interpreted by the European Court’s case law (ECtHR, 10 March 2009, Bykov v. Russia, No. 4378/02), which requires that « every applicant must be given the opportunity to challenge the authenticity of the evidence and oppose its use », the Criminal Chamber excludes from the rule established on 6 February 2018 cases where the breached essential procedural requirement is intended to « guarantee the adversarial nature of the search operations and the actual presence on the premises of the objects discovered and seized ».
In this situation, the Court sets aside the requirement to establish standing through the existence of a right over the searched premises, holding that « any party » then has « standing to invoke the breach of the procedural requirement ». It therefore falls to the Criminal Chamber to define, case by case, which requirements governing criminal searches meet this definition.
This does not apply to procedural requirements intended to ensure « protection of private life and the home », an interest personal to the holder of a right over the premises, such as:
- the provisions of Article 76 of the Code of Criminal Procedure concerning the consent of the person whose premises are searched during a preliminary investigation (Criminal Chamber, 9 November 2021, No. 21-83.095 B, D. 2021. 2047; AJ pénal 2022. 44; RSC 2022 439, commentary by E. Rubi-Cavagna, and 9 November 2021, No. 21-83.094);
- the provisions in the first paragraph of Article 57 of the Code of Criminal Procedure concerning the presence of the person whose home is searched (No. 21-83.095 B, cited above);
The applicant must still establish standing in these situations.
The Court of Cassation has nevertheless adopted a broad interpretation of a « right » over the searched premises: in the case in question, the mere possession by the person under formal investigation of a hotel room key at the time of arrest was sufficient to establish standing.
Conversely, the following are essential procedural requirements necessary to « guarantee the adversarial nature of the search operations and the actual presence on the premises of the objects discovered and seized »:
- the OPJ’s obligation to invite the person whose premises are searched to designate a representative in the event of absence, laid down in the second paragraph of the Code of Criminal Procedure (Criminal Chamber, 7 September 2021, No. 20-87.191 B, cited above, confirmed by Criminal Chamber, 13 June 2023, No. 22-86.239);
- failing that, the OPJ’s obligation under the same paragraph to conduct the search in the presence of « two witnesses called upon by the officer for that purpose, other than persons subject to the officer’s administrative authority » (Criminal Chamber, 13 September 2022, No. 22-80.515 B, cited above, confirmed by Criminal Chamber, 13 June 2023, No. 22-86.239);
- the requirement to sign the official search and seizure record, laid down in the third paragraph of Article 57 of the Code of Criminal Procedure (Criminal Chamber, 7 September 2021, No. 21-80.642, cited above);
- the OPJ’s obligation, under the special procedure derogating from the ordinary rules applicable to organised crime (For the offences listed in Article 706-73 of the Code of Criminal Procedure), pursuant to Article 706-94 of that Code, to obtain the prior consent of the public prosecutor or investigating judge to conduct a search in the absence of the person whose premises are searched, in the presence of a representative or two witnesses called upon for that purpose (Criminal Chamber, 7 June 2023, No. 22-84.442, D. 2023. 1176; AJ pénal 2023. 407, commentary by R. Mesa ).
It is worth observing the curious distinction between the presence of the person holding a right over the premises during the search (required by paragraph 1 of Article 57 of the Code of Criminal Procedure), which is said to serve the « protection of private life and the home », and that of a representative or two witnesses called upon for that purpose (paragraph 2 of the same Article), which « guarantees the adversarial nature of the search operations and the actual presence on the premises of the objects discovered and seized ». It is difficult to imagine that the former’s presence does not serve the same purpose, to the extent that an additional admissibility requirement is imposed on that person, albeit one that is automatically satisfied.
The decision under review differs slightly from the rulings discussed above in establishing that the obligation for « qualified persons » assisting OPJs during a search to take an oath when they are not registered on expert lists is an essential procedural requirement « enacted to ensure the reliability of the gathering and presentation of evidence », whose breach may be invoked by « any party with an interest in doing so ».
The identified function of the oath requirement is therefore identical to that of the essential procedural requirements governing the engagement of qualified persons pursuant to requisitions (see above). Consistently, its breach produces the same effects as breaches of the requirements intended to « guarantee the adversarial nature of the search operations and the actual presence on the premises of the objects discovered and seized ».
Finally, although the Court of Cassation was not asked in this case to address the requirement to establish prejudice in such circumstances, namely the harm suffered by the applicant, the issue appears already to have been resolved.
It has been established that the mere presence during a technical examination, without any other affirmative act, of an expert called upon to assist who is neither registered on the lists nor sworn is not such as to « infringe the defendant’s interests » (Criminal Chamber, 27 March 2002, No. 01-85.693).
Conversely, the Criminal Chamber has more recently emphasised that failure to take an oath by URSSAF officials acting as « qualified persons », whose assignment entailed « examining » and analysing the « contents » of documents in order to identify those « necessary to ascertain the truth », causes prejudice to the applicant (Criminal Chamber, 27 March 2019, No. 18-83.493).
The distinguishing criterion would therefore appear to be whether the qualified person’s role was active or passive, as evidenced by the initial assignment and/or the official records documenting the conduct of the operations. This presupposes that such details are, in practice, recorded in the corresponding procedural documents.